Do Towns Have the Right to Decide Who Drives on Their Streets?

A traffic sign posted in Leonia. (Credit): Richard Harbus

Suburbia begins at the foot of the Palisades upon the exit of the George Washington Bridge. The first span of the bridge was completed in 1931. At the time at 4,760 feet across, it was the longest span in the world, nearly double the Ambassador Bridge between Detroit and the Canadian border town of Windsor, Ontario. When the George Washington Bridge was designed, it was estimated to have a capacity of eight million cars per year. That capacity nearly doubled 30 years later, when a lower span was added in 1961 giving the bridge 14 lanes of moving traffic.

Today the GWB is the most heavily commuted bridge in America. The vehicular traffic puts stress on the communities surrounding the span in New Jersey. The townships of eastern Bergen County were incorporated long before the bridge opened. Fort Lee was incorporated in 1904, Englewood in 1899; Teaneck was formed in 1895 after breaking off from Leonia, which was founded a year earlier in 1894.

The one thing these municipalities have in common in congestion. With the advent of GPS and computerized trafficking systems like Maps and Waze, the problem for locals from out-of-town drivers looking for alternative routes has only become worse. That has prompted Leonia to take a novel, and somewhat desperate, approach—Leonia announced two weeks ago that starting this month it would be banning all traffic on local streets except those drivers who live within the borough. Although Leonia said that starting February 1, it would be enforcing the new measure with citations, the program has only resulted in warnings to date, in addition to at least one lawsuit filed in the New Jersey Bergen County Court.

Leonia is a town less than five miles from the George Washington Bridge. The new rule applies to all non-residents with respect to more than 60 local roads in the borough—pretty much any street that is not an Interstate highway like Route 80, or a state road like routes 4, 46, 1 and 9. Leonia’s police say that for now, they will stop cars without permits and issue warnings “to be fair” during a period of transition, but soon they will give out $200 motor vehicle tickets for unauthorized driving. The mayor, Judah Ziegler says, “The issue has been thoroughly researched; we believe we are on firm ground.” Ziegler says the initiative is “absolutely legal.”

Ziegler was being naive. Either that or optimistic. Just last week Jacqueline Rosa, a lawyer from Edgewater with an office in Ridgewood filed a suit seeking a declaratory judgment that neither Leonia, nor any town in New Jersey, can restrict the right of travel on public roads. Rosa says that although she has not received a citation yet, she does not want to risk one if Leonia starts enforcing its new ordinance. She says that Leonia is the most direct route for her commute to and from work, and blocking her from using Leonia roads simply because she is not a town resident will add 20 minutes to her commute each way. Further, Rosa says, that giving a municipality the right to restrict road use to only its residents “creates a bad precedent.” Rosa explains, “If every town did what Leonia did, it would be absolutely ridiculous.” She fears a chaotic system where drivers would fear being pulled over simply because they were not on a road in the town where they live.

Steve Carrellas, head of the New Jersey chapter of the National Motorists Association agrees. He is also looking to challenge Leonia in Federal Court, but since no one has been ticketed yet, no Federal suit has been filed, although the motorist group is monitoring the situation. Carellas says, “Any municipality... can get away with anything they want until they’re challenged in court.” The NJMA says they intend to challenge the law, which they contend violates the constitutional principles of privileges and immunities as well as regulation of interstate commerce.

Mayor Ziegler has been forthright that the intention of the regulation is to restrict access to vehicles seeking an alternative route to and from the George Washington Bridge. Leonia is not hiding the fact that they do not want commuter traffic on its streets. Ziegler complains, “more than 15,000 cars swarm Fort Lee Road on the worst days, flooding backstreets and overwhelming the 18-officer Leonia police department.”

Village police chief Tom Rowe adds, “Now, traffic accidents, broken-down cars and road rage incidents tie up police officers and distract them from emergency calls. Other officials complain volunteer firefighters can’t back out of their own driveways, delaying fire engines and creating a public hazard. There have also been eight pedestrians involved in car collisions in the last three years, including one death.”

That all sounds reasonable, but the rationale behind Leonia’s conclusion that the ordinance is constitutional is dubious. The mayor cites a 41-year-old Supreme Court decision affirming local governments’ rights to restrict commuter parking in residential neighborhoods as proof of its authority. The 1977 decision that the mayor cites, however, Arlington County Boards v. Richards, was of limited scope and involved the right of Arlington County in Virginia to restrict parking in high-density traffic areas; it did not restrict anyone from driving on county roads.

In fact, the decision written by Justice Thurgood Marshall pretty much cited the opposite in reasoning that Arlington County could regulate parking “in order to encourage carpools.” Marshall noted that fewer parked cars would “limit traffic and air pollution” while commuting on Arlington County streets. The decision was also decided solely on Equal Protection grounds. It did not address the nature of Interstate commerce or the right to restrict a resident of another state a right afforded locally.

That is the crux of the Privileges and Immunities clause and it is a clear bright line in the US Constitution: A state government entity cannot reserve rights for its residents that are barred to residents of another state. In other words, all American citizens are entitled to the privileges and immunities regardless of where they reside. The courts have interpreted this clause to mean that states cannot reserve rights for its own citizens that would be denied to citizens of other states like traveling on local streets from one location to another, for instance.

More specifically, the Supreme Court has inferred over 200 years a tradition that states cannot use restrictions to ban visitors from the right to travel within their jurisdiction. That would be right on point of the Leonia prohibition.

Fundamentally, while certainly there is a state interest in keeping roadways clear for emergency vehicles and safe for local residents, it cannot do so in a manner that discriminates against commuters from other jurisdictions. There is an essential difference between the right to restrict parking, as is upheld as constitutional in the Arlington County decision and the expressed power that Leonia seeks in limiting interstate travel through its borough.

Leonia has a right to regulate drivers. They can set up checkpoints. They can add traffic lights and stop signs. They can lower the speed limit as long as they do so for everybody. However, that is still a long way away from putting up a virtual wall for non-residents and telling drivers, “these roads are only for us.” That is what Leonia says they will be doing shortly.

Mayor Judah Ziegler insists that he is in the right. He says, “I’m not going to take actions that I believe are morally or legally wrong,” adding that he is only trying to act “in the best interest of my constituents.” The real best interest of his constituents is to act in a legal and constitutional manner so that the borough will not have to waste taxpayer resources on an indefensible and misguided, albeit well-intentioned, policy. It is possible that the fact Leonia has delayed actual enforcement is indication that the regulation is bluster only intended as a bluff. However, if Mayor Ziegler and Leonia mean what they say, the mayor may find his firm ground will be a lot shakier than he suspects. It might just be as shaky as an 18-wheeler driving on a county road towards the George Washington Bridge at rush hour.

By Stephen Loeb

Stephen Loeb runs a law practice licensed in New Jersey and New York. He can be reached at sloeb@loeblaw.com.